United States v. Payano, 071019 FED3, 18-1153

Docket Nº:18-1153
Attorney:Abigail E. Horn [ARGUED] Brett G. Sweitzer Federal Community Defender Office for the Eastern District of Pennsylvania Counsel for Appellant Pedro Ramon Payano Bernadette A. McKeon [ARGUED] Jennifer B. Jordan Office of United States Attorney Counsel for Appellee United States of America
Judge Panel:Before: JORDAN, KRAUSE, and ROTH, Circuit Judges
Case Date:July 10, 2019
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit




No. 18-1153

United States Court of Appeals, Third Circuit

July 10, 2019

Argued: January 23, 2019

On Appeal from the United States District Court for the Eastern District of Pennsylvania (E.D. Pa. No. 2-17-cr-0238-001) District Judge: Honorable R. Barclay Surrick

Abigail E. Horn [ARGUED] Brett G. Sweitzer Federal Community Defender Office for the Eastern District of Pennsylvania Counsel for Appellant Pedro Ramon Payano

Bernadette A. McKeon [ARGUED] Jennifer B. Jordan Office of United States Attorney Counsel for Appellee United States of America

Before: JORDAN, KRAUSE, and ROTH, Circuit Judges



Appellant Pedro Ramon Payano appeals his sentence on the ground that the District Court's mistaken belief as to the applicabl e statutory maximum constitutes plain error. In his view, this error warrants resentencing by way of analogy to olina-Martinez v. United States where the Supreme Court held that an incorrectly calculated United States Sentencing Guidelines range presumptively satisfies the prejudice prong of plain-error review because of its "centrality" to a district court's sentence. 136 S.Ct. 1338, 1346 (2016). We agree that there was error but decline to extend the presumption of prejudice recognized in Molina-Martinez to this context because a mistaken understanding about the applicable statutory range, without more, has far less bearing on the actual sentence imposed than a Guidelines-calculation error. However, because we conclude on this record that the error did affect Payano's substantial rights and without correction would seriously affect the fairness, integrity, or public reputation of judicial proceedings, we will vacate his sentence and remand for resentencing.



Payano is a citizen of the Dominican Republic who first came to the United States legally with his parents at age twelve. In 1998, at age eighteen, he pleaded guilty to first degree possession of a controlled substance in New York state court, and in 2001, after completing his sentence of three years to life imprisonment, he was removed based on that drug possession conviction. Although Payano illegally reentered the United States in 2012, his presence was not discovered until 2017 when a Pennsylvania state trooper pulled over his vehicle. After an extended traffic stop, the trooper obtained consent to search the vehicle and found a kilogram of cocaine hidden in an interior panel.

A grand jury in the Eastern District of Pennsylvania indicted Payano for illegal reentry, in violation of 8 U.S.C.§ 1326, and possession with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(II). On Payano's pretrial motion to suppress, the District Court agreed with him that the drugs found in the vehicle were fruit of an unconstitutional search because the trooper lacked reasonable suspicion to prolong the stop. The Government then dismissed the drug charge, and Payano pleaded guilty to illegal reentry. Because Payano's 1998 conviction was for drug possession and not drug distribution, it qualified under federal law as a felony, but not an aggravated felony, for purposes of the illegal reentry offense. Accordingly, Payano's plea was to a violation of 8 U.S.C. § 1326(b)(1), which applies to illegal reentry following a "felony (other than an aggravated felony)" and carries a maximum sentence of ten years, and not 8 U.S.C. § 1326(b)(2), which applies to illegal reentry following an "aggravated felony" and carries a maximum sentence of twenty years.

In anticipation of sentencing, the United States Probation Office prepared a Presentence Report (PSR). That report correctly calculated the applicable Guidelines range as 24-30 months' imprisonment and correctly listed the statutory maximum term of imprisonment as ten years. However, instead of citing § 1326(b)(1) as the offense of conviction, it cited § 1326(b)(2). Although the PSR made no reference to illegal reentry following an aggravated felony nor made mention of § 1326(b)(2)'s twenty-year maximum, the citation error was compounded when the Government argued in its sentencing memorandum seeking an upward variance that Payano had been "convicted of an aggravated felony prior to his deportation," JA 69 n.2, and when it requested at the sentencing hearing that the District Court "correct" the PSR to reflect that Payano had pleaded guilty to "aggravated reentry," carrying a twenty-year statutory maximum sentence. JA 92-93. The District Court ordered that the PSR be amended to reflect that change-a "correction" to which Payano's counsel agreed. JA 92. Neither the District Court nor the parties mentioned it again during the proceedings, but at the conclusion of the hearing, the District Court granted the Government's motion for an upward variance. It then imposed a four-year sentence, 18 months above the Guidelines range, yet well below the applicable ten-year statutory maximum and, a fortiori, well below the twenty-year maximum that the District Court believed applicable.

II. Discussion1

Payano argues, for the first time on appeal, that he is entitled to resentencing because the District Court plainly erred by accepting that the applicable statutory maximum was twenty, as opposed to ten, years' imprisonment.[2] As the Government conceded at oral argument that our review is for plain error under Federal Rule of Criminal Procedure 52(b), 3 we must decide whether (1) an error occurred, (2) the error is "plain," and (3) it "affect[s] substantial rights." United States v. Olano, 507 U.S. 725, 732 (1993) (alteration in original); Fed. R. Crim. P. 52(b). If those three conditions are met, a court of appeals should exercise its discretion to correct the error if it would "seriously affect[] the fairness, integrity or public reputation of judicial proceedings." Olano, 507 U.S. at 732 (quoting United States v. Young, 470 U.S. 1, 15 (1985)). Payano has the burden of demonstrating that the four Olano factors are met. Id. at 734-35.

Here, the first two are clearly satisfied. There is no dispute that the District Court erred in finding that Payano pleaded guilty to illegal reentry following an "aggravated felony," in violation of 8 U.S.C. § 1326(a) and (b)(2), and that the error was "plain."4 The question presented by this case arises at Olano's third prong: whether the District Court's error "affect[ed] [Payano's] substantial rights." 507 U.S. at 732. Below, we address that issue, and because we conclude his substantial rights were affected, we then consider whether, under Olano's fourth prong, the error, if uncorrected, would seriously affected the fairness, integrity, or public reputation of judicial proceedings.

A. Whether the Error Affected Payano's Substantial Rights

For an error to affect a defendant's substantial rights, it must have "prejudiced [him], either specifically or presumptively," i.e., "[i]t must have affected the outcome of the district court proceedings." Id. at 734, 739. Demonstrating "a prejudicial effect on the outcome of a judicial proceeding" ordinarily requires a "reasonable probability" that, but for the claimed error, "the result of the proceeding would have been different." United States v. Dominguez Benitez, 542 U.S. 74, 81-82 (2004) (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). But "reasonable probability" in this context "is not the same as, and should not be confused with, a requirement that a defendant prove by a preponderance of the evidence that but for [the] error things would have been different." Id. at 83 n.9. Rather, as with the prejudice standard articulated in Strickland v. Washington, 466 U.S. 668, 694 (1984), and the materiality standard under Brady v. Maryland, 373 U.S. 83, 87 (1963), see Giglio v. United States, 405 U.S. 150, 154 (1972), it means only that a defendant must "satisfy the judgment of the reviewing court, informed by the entire record, that the probability of a different result is 'sufficient to undermine confidence in the outcome' of the proceeding," Dominguez Benitez, 542 U.S. at 83 (citing Strickland, 466 U.S. at 694; Bagley, 473 U.S. at 682); accord United States v. Corso, 549 F.3d 921, 929-30 (3d Cir. 2008) (same).5

Here, then, Payano must show that but for the District Court's erroneous understanding of the applicable statutory maximum, the likelihood of a sentence shorter than four years is "sufficient to undermine [our] confidence" in the sentencing proceeding. Dominguez Benitez, 542 U.S. at 83. Payano argues that he satisfies that standard, either because (1) the District Court's error is one that warrants a presumption of prejudice, or, alternatively, (2) the sentencing record reveals a "reasonable probability" that the error influenced the District Court. We address these arguments in turn.

1. The statutory-range error here does not give rise to a presumption of prejudice.

In Molina-Martinez v. United States, 136 S.Ct. 1338 (2016), the Supreme Court held that miscalculation of the applicable range under the United States Sentencing Guidelines "itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error." Id. at 1345. Payano asks this Court to extend that rebuttable presumption of prejudice for Guidelines-range errors to the statutory-range error here-specifically, to a district court's mistaken belief as to the applicable statutory maximum. As the reasoning of Molina-Martinez highlights, however, marked differences between the relative significance in sentencing of the applicable Guidelines range and the statutory range counsel against such an extension. The...

To continue reading